A marriage ceremony is one of India’s most sacred agreements between a man and woman. Personal laws govern marriage, divorce, inheritance, and succession in India. These personal rules have their origins in numerous faiths, and personal laws have a long history in India.
As a result, the religion we are born in decides our rights as Indian citizens. It provides the right to divorce from the spouse, and the numerous grounds for separation are based on respective personal laws used to solemnise the marriage.
The Hindu Marriage Act of 1955 now governs Hindu, Buddhist, Sikh, and Jain marriages. The Dissolution of Muslim Marriages Act of 1939 governs Muslims, the Divorce Act 1869 governs Christians, and the Parsi Marriage and Divorce Act of 1936 governs Parsis.
In a marriage, day-to-day difficulties may arise, which go well beyond religious conventions. The Hindu Marriage Act was enacted to guarantee the legal rights of married persons. The act even presented possibilities for cancelling said marriage within particular parts with restrictions and boundaries that any party may consider.
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Judicial Separation in India
The Indian marriage laws provide a mechanism for judicial separation, and the court requires a time of separation before initiating the divorce process. Under judicial separation, both spouses live apart for some time, giving them ample space, independence, and time to consider whether or not to continue their marriage. During this stage, the partners retain the legal status of husband and wife while also living separately.
Grounds for Judicial Separation in India
- Adultery – Adultery occurs when one of the spouses freely engages in sexual relations with someone other than their spouse. In this case, the offended person may seek remedy, but the intercourse must occur after the marriage.
- Cruelty – When a spouse abuses their partner cruelly or causes mental or bodily anguish after the marriage, the victim may submit a petition based on cruelty.
- Desertion – In this section, it is specified that if one spouse leaves the other spouse for any reason without telling them for not less than 2 years before the filing of the petition by the other spouse, the wounded party can seek judicial separation relief.
- Unsound mind – If one of the spouses has a mental illness, it is difficult for the other spouse to live under matrimony. The other spouse may seek court separation relief.
- Leprosy – If one of the spouses is suffering from an illness that cannot be cured, such as leprosy, the other party may submit a petition for judicial separation.
- Venereal disease – If one of the parties to a marriage, or a spouse, has an incurable and contagious disease that the spouse was unaware of at the time of marriage, it may be a legal reason for the spouse to submit a petition for judicial separation.
- Renunciation of the world – In Hindu law, renunciation of the world is known as ‘Sannyasa’. Renunciation from the word denotes a person who has given up the world, lives a holy life, and is regarded as a civil dead. If a spouse chooses to live a religious life and renounces the world, their partner may move for judicial separation.
- Presumption of death/civil death – If a person has been missing for 7 years or longer and no one has heard from them, they are considered dead. In this case, the other spouse may seek judicial separation.
- Rape, sodomy, or bestiality – If her spouse is found guilty of rape, bestiality, or sodomy after the marriage, the woman has the right to submit a petition for judicial separation.
- Repudiation of marriage/puberty option – If a girl marries before she reaches the age of 18, she has the right to seek judicial separation.
- Bigamy – This implies that if a husband remarries when he is already married, both of his wives have the right to file a petition for judicial separation as long as the other wife is alive at the time of filing.
Difference between Judicial Separation and Divorce
Even though the procedures for dealing with defended and undefended judicial separation and divorce are identical, there are some variances. Investigate them as follows:
- Judicial separation does not end a marriage, but divorce is termination of marriage because the parties are no longer husband and wife.
- The court does not have to evaluate whether the marriage is permanently closed or broken down when moving for judicial separation. However, it is necessary when filing the divorce petition.
- Both parties can seek judicial separation at any time after the marriage; however, in divorce, the parties can only file for divorce after 1 year of marriage.
- A judicial separation is a one-stage judgement procedure, whereas divorce is a two-stage judgement procedure.
- Specific clauses in the Matrimonial Causes Act of 1973 apply to divorce but not to judicial separation applications, regardless of whether the separation duration is 2 or 5 years.
- Judgments on wills are not relevant in the event of judicial separation. If the parties are going through a divorce and one of the spouses dies, then the existing spouse will not benefit from it, and the property will devolve.
Judicial separation is a process in which the Court gives a couple seeking divorce one more chance to resolve their issues by living separately before initiating divorce proceedings. It allows for reflection and the resolution of marital problems and misunderstandings between the pair.
What should be provided when filing a petition for judicial separation?
The following should be provided when filing for a divorce:
- The marriage date and location.
- According to their affidavit, the individual must be a Hindu.
- Names, statuses, and addresses of both parties
- Children's names, birth dates, and gender (if any)
- Details of the litigation filed before the decree for judicial separation or divorce.
- The evidence should show the basis for the judicial separation.
What is the process for legal separation in India?
Both spouses must file a divorce petition with the district court simultaneously. Before submitting the petition, the married couple should ensure that they live separately for at least a year. After granting the petition, the parties must provide a statement.
Which section prescribes the grounds for judicial separation?
Section 13 of the Hindu marriage act 1955 prescribes the grounds for judicial separation. The grounds for judicial separation and divorce are the same under the act.
Who is entitled to file a petition for judicial separation in the court of law?
Any spouse in a marital relationship can file a petition for judicial separation under Section 10 of the Hindu marriage act 1955.